Opinion by
Philips, P. J.
I. The judgment in this case cannot stand, if for no other objection, because it awards ten per cent, interest from date of its rendition. W e know of no statute authorizing a rate of interest on a judgment against a garnishee, different from that in other judgments at law. The statute (Rev. Stat. sects. 2723, 2725) prescribes the rate of interest in this instance as not exceeding six per cent. Had either Bracken or Stricker recovered judgment against Hale & Eads for the money in their, hands, the judgment would not have borne over six per cent, interest-. It is too well established to require any citation of authorities that the attaching creditor or execution plaintiff can have no greater judgment against the garnishee than the defendant himself could have recovered had he sued his debtor
II. Counsel have discussed mainly the questions of the right to garnish attorneys, and whether or not the money in the hands of Hale & Eads, being the proceeds of the mortgaged property retained on delivery bond in contro versy with Wilcoxson & Co., was not in custodia legis, and, therefore, not subject to a further seizure. But it occurs to me there is a question, lying at the very thresh[88]*88old of this controversy, which presents an insuperable barrier to the plaintiff’s recovering. If Strieker, who suffered the money to remain in the hands of his attorneys, were the defendant in execution, the right may be conceded of the plaintiff to garnish money in the hands of his attorneys or agent. But Strieker, their client and principal, is not the defendant; he is not even a party to this record.
It may also be conceded, for the purposes of this inquiry, that Strieker might have been garnished as the debtor of Bracken, the execution defendant, for there was a privity of. contract and interest between them. But is there any privity of contract and interest between Bracken and Hale & Eads ?
It is a cardinal principle of the doctrine of garnishment that the garnishee must not only have the actual possession of the defendant’s effects, but there must be, except, perhaps, in the instance of a fraudulent disposition of property, privity of contract and interest between the garnishee and the defendant, which would give the defendant a right of action at law against him. — Waples on Attach. & Gar. 195; Freeman on Ex. sect. 160; Brake on Attach. 485.
Unless especially extended in its scope by statutory provision, garnishment is essentially a proceeding at law. It is “designed mainly to reach the legal assets in the hands of third persons, or to intercept legal credits owing to the defendant, and compel their payment to the plaintiff.” — Freeman, Ex., 159. So Adams, J., in Lackland v. Garesche (56 Mo. 270), said: “The remedy by attachment for the collection of debts in this state is essentially legal, and not equitable in its nature and pro* cedure. It is founded alone upon statutory law, and, with a few modifications, has been in existence as long as the state itself.- It was in full force when the present code of practice was adopted, and it is safe to say that it has not been changed or essentially modified by that code. The whole tenor of our attachment laws, so far as garnishees are concerned, indicates that they are intended to operate [89]*89on legal property, rights, and effects of the debtor in the hands of the garnishee.”
In this respect there is no distinction between the trustee process under execution and an attachment writ.
We are unable to discover any privity of contract between Bracken and these garnishees. Between them there was no contract, express or implied. There was no privity of interest. The garnishees owed him nothing which he could enforce at law. They held the money in question as the attorneys, the mere naked depositaries, of Strieker, subject, at any .and all times, to his call and order. They neither had nor claimed any interest in it, and were answerable, without condition, to their principal for this money.
“Mere possession, without authority, or derived from the defendant, directly or indirectly, to hold the property for him, might give the right of direct attachment, but would give the possessor no legal control over it, and no right to. turn it over.” — Waples,' Attach.■& Gar; 194. As is suggested in many decisions, as well-say that the hotel keeper in charge of a guest’s trunk or pocket-book for the night, or the hirer of a livery horse, or the groom in charge of his master’s horse and carriage, are liable to garnishment at the hands of a creditor of the hotel keeper, the livery man, or the owner .of the horse and vehicle, as to claim that these garnishees are' liable, simply because of their naked possession of a trust fund.
As is aptly said in McGraw v. Mem. & O. R. R. (5 Cold. 434), the question on inquiry is, whether the actual and substantial possession is with the employe, or whether his relation to the property is merely of employment and service, while the real possession and control is with the owner or some other.
The possession of Hale & Eads, the mere servants and depositaries, was, in law, the possession of Strieker. Had Strieker been garnished for this money it wuuld have been no ground for discharge for him to have answered, that the money was in possession of his attorneys which he voluntarily permitted them to hold for him. ‘ ‘ What [90]*90Ms agent holds,- he holds; and he is amenable to the process, in a suit against the defendant owner. This is apparent in consideration of the fact that those who hold under him and for him are not garnishable because of such possession in a suit against their immediate principal, for the manifest reason that the funds are not his.” —Waples, Attach.''etc., 201. This carries the doctrine farther than is necessary for the purposes of this case.
If in fact and law, Strieker was amenable to garnishment, either as the debtor, or as having in his possession, or under his control, the money of the defendant, Bracken, it must follow that Hale & Eads were not, for there was no community of indebtedness or joint possession of the money.
In Showhegan Bank v. Farrar (46 Me. 393), it is held, inter alia, that in order to constitute the relation of trustee (garnishee) there must be privity of contract, expressed or implied, between the principal debtor and the trustee, or the former must have intrusted and deposited goods and effects with the latter. There was, as we have already said, no contract between Bracken, the principal debtor, and the garnishees, nor did Bracken intrust or leave with them any effects. The case last cited further holds, that where one' has possession of mortgaged property as the agent of the mortgagee, to whom he is accountable, he is not- chargeable as garnishee of the mortgageor; and for the obvious reason that the mortgageor has notintrusted, or placed the property in his hands. “The trustee held the property mortgaged as the agent of the mortgagee, and is accountable to him.” In Gould v. Newburyport R. R. Co. (14 Gray, 472), Merrick, the consignee of goods which were transported over two connecting railroads, was garnished by the creditor of the company from which he received the goods, for the freight money of the first railroad.
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Opinion by
Philips, P. J.
I. The judgment in this case cannot stand, if for no other objection, because it awards ten per cent, interest from date of its rendition. W e know of no statute authorizing a rate of interest on a judgment against a garnishee, different from that in other judgments at law. The statute (Rev. Stat. sects. 2723, 2725) prescribes the rate of interest in this instance as not exceeding six per cent. Had either Bracken or Stricker recovered judgment against Hale & Eads for the money in their, hands, the judgment would not have borne over six per cent, interest-. It is too well established to require any citation of authorities that the attaching creditor or execution plaintiff can have no greater judgment against the garnishee than the defendant himself could have recovered had he sued his debtor
II. Counsel have discussed mainly the questions of the right to garnish attorneys, and whether or not the money in the hands of Hale & Eads, being the proceeds of the mortgaged property retained on delivery bond in contro versy with Wilcoxson & Co., was not in custodia legis, and, therefore, not subject to a further seizure. But it occurs to me there is a question, lying at the very thresh[88]*88old of this controversy, which presents an insuperable barrier to the plaintiff’s recovering. If Strieker, who suffered the money to remain in the hands of his attorneys, were the defendant in execution, the right may be conceded of the plaintiff to garnish money in the hands of his attorneys or agent. But Strieker, their client and principal, is not the defendant; he is not even a party to this record.
It may also be conceded, for the purposes of this inquiry, that Strieker might have been garnished as the debtor of Bracken, the execution defendant, for there was a privity of. contract and interest between them. But is there any privity of contract and interest between Bracken and Hale & Eads ?
It is a cardinal principle of the doctrine of garnishment that the garnishee must not only have the actual possession of the defendant’s effects, but there must be, except, perhaps, in the instance of a fraudulent disposition of property, privity of contract and interest between the garnishee and the defendant, which would give the defendant a right of action at law against him. — Waples on Attach. & Gar. 195; Freeman on Ex. sect. 160; Brake on Attach. 485.
Unless especially extended in its scope by statutory provision, garnishment is essentially a proceeding at law. It is “designed mainly to reach the legal assets in the hands of third persons, or to intercept legal credits owing to the defendant, and compel their payment to the plaintiff.” — Freeman, Ex., 159. So Adams, J., in Lackland v. Garesche (56 Mo. 270), said: “The remedy by attachment for the collection of debts in this state is essentially legal, and not equitable in its nature and pro* cedure. It is founded alone upon statutory law, and, with a few modifications, has been in existence as long as the state itself.- It was in full force when the present code of practice was adopted, and it is safe to say that it has not been changed or essentially modified by that code. The whole tenor of our attachment laws, so far as garnishees are concerned, indicates that they are intended to operate [89]*89on legal property, rights, and effects of the debtor in the hands of the garnishee.”
In this respect there is no distinction between the trustee process under execution and an attachment writ.
We are unable to discover any privity of contract between Bracken and these garnishees. Between them there was no contract, express or implied. There was no privity of interest. The garnishees owed him nothing which he could enforce at law. They held the money in question as the attorneys, the mere naked depositaries, of Strieker, subject, at any .and all times, to his call and order. They neither had nor claimed any interest in it, and were answerable, without condition, to their principal for this money.
“Mere possession, without authority, or derived from the defendant, directly or indirectly, to hold the property for him, might give the right of direct attachment, but would give the possessor no legal control over it, and no right to. turn it over.” — Waples,' Attach.■& Gar; 194. As is suggested in many decisions, as well-say that the hotel keeper in charge of a guest’s trunk or pocket-book for the night, or the hirer of a livery horse, or the groom in charge of his master’s horse and carriage, are liable to garnishment at the hands of a creditor of the hotel keeper, the livery man, or the owner .of the horse and vehicle, as to claim that these garnishees are' liable, simply because of their naked possession of a trust fund.
As is aptly said in McGraw v. Mem. & O. R. R. (5 Cold. 434), the question on inquiry is, whether the actual and substantial possession is with the employe, or whether his relation to the property is merely of employment and service, while the real possession and control is with the owner or some other.
The possession of Hale & Eads, the mere servants and depositaries, was, in law, the possession of Strieker. Had Strieker been garnished for this money it wuuld have been no ground for discharge for him to have answered, that the money was in possession of his attorneys which he voluntarily permitted them to hold for him. ‘ ‘ What [90]*90Ms agent holds,- he holds; and he is amenable to the process, in a suit against the defendant owner. This is apparent in consideration of the fact that those who hold under him and for him are not garnishable because of such possession in a suit against their immediate principal, for the manifest reason that the funds are not his.” —Waples, Attach.''etc., 201. This carries the doctrine farther than is necessary for the purposes of this case.
If in fact and law, Strieker was amenable to garnishment, either as the debtor, or as having in his possession, or under his control, the money of the defendant, Bracken, it must follow that Hale & Eads were not, for there was no community of indebtedness or joint possession of the money.
In Showhegan Bank v. Farrar (46 Me. 393), it is held, inter alia, that in order to constitute the relation of trustee (garnishee) there must be privity of contract, expressed or implied, between the principal debtor and the trustee, or the former must have intrusted and deposited goods and effects with the latter. There was, as we have already said, no contract between Bracken, the principal debtor, and the garnishees, nor did Bracken intrust or leave with them any effects. The case last cited further holds, that where one' has possession of mortgaged property as the agent of the mortgagee, to whom he is accountable, he is not- chargeable as garnishee of the mortgageor; and for the obvious reason that the mortgageor has notintrusted, or placed the property in his hands. “The trustee held the property mortgaged as the agent of the mortgagee, and is accountable to him.” In Gould v. Newburyport R. R. Co. (14 Gray, 472), Merrick, the consignee of goods which were transported over two connecting railroads, was garnished by the creditor of the company from which he received the goods, for the freight money of the first railroad. The court say: “ The sum of $63.49 was due from Merrick to the Boston and Maine Railroad, and not to the Newburyport Railroad Company, and was received by the latter for the former, and as their agents.” He was therefore discharged.
[91]*91Redfield, J., in Barker v. Esty (19 Vermt. 131), says: It has never been considered that it (the trustee process) extended to any other class of debtors, or demands, than such as are the ordinary result, of contract, creating a fiduciary relation. It is the fidei commissarius of the civil,'and the factor of the common law.” And Wilde, J., in Staniels v. Raymond (4 Cush. 316), held that the mere possession of property by a party having no claim to hold it against the owner, cannot render him liable therefor as garnishee.
In Penniman v. Ruggles (6 N. H. 166), the sheriff had attached goods of the, defendant debtor, and placed them in the hands of an auctioneer to sell. The auctioneer, after the sale and while the money was yet in his hands, was summoned as garnishee of the defendant. The court held he was not liable, ‘ ‘ as there was no privity between him and the defendant, and that he should account to the officer who. employed him.” So here, the mortgagee intrusted the conduct of the sale to his attorneys, who, after the sale and while the proceeds were in their hands as such agents and servants,. were not amenable to garnishment at the instance of a creditor of' the •mortgageor. Their plain duty was to. account to the mortgagee who employed or trusted them. A further difficulty occurs to my mind in upholding this judgment. In the proceeding by garnishment, when the garnishee is summoned and comes into court, both the creditor plaintiff and the debtor defendant are in court. All the parties whose interests are to be affected by the judgment are before the court, with the right to be heard, and all are concluded by the judgment. But in the case at bar, Strieker, the mortgagee and principal of the garnishees, is not in court. And yet, in his absence, under the trustee process, a naked proceeding at law, the court undertook to determine that Strieker’s mortgage was satisfied, that there was no accounting to be had between him and his attorneys and the mortgageor, that the money in question was subject to no equities or set-offs, and that the agents and depositaries of the absent "mortgagee [92]*92should be discharged from any accountability to him to the extent of $100. In ■ short, the plaintiff undertook, by the process of garnishment, to follow up the proceeds of the trust fund, and to reach a residuary interest therein in the hands of a stranger to his debtor. “Garnishment, whether made under an attachment or under an executio'n, is a legal and not an equitable proceeding.” — Freeman, Executions, par. 162; Lackland v. Garesche, supra, 267.
The action was misconceived; and it follows that the judgment of the circuit court should be reversed and the cause remanded, with- directions to the circuit court to discharge the garnishees. It is -accordingly so ordered.
All concur.